Citation Nr: 0501581
Decision Date: 01/21/05 Archive Date: 02/07/05
DOCKET NO. 93-16 135 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for residuals of a neck
injury.
2. Entitlement to service connection for residuals of a back
injury.
3. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
George E. Guido Jr., Senior Counsel
INTRODUCTION
The appellant served on active duty from March 1966 to
November 1969. He also served in the Army Reserve and
National Guard with a period of active duty for training from
July 31, 1976, to August 13, 1976. In addition, he served on
active duty from February to December 1991.
Procedural History
This matter is before the Board of Veterans' Appeals on
appeal of a July 1990 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO).
In a December 1992 administrative decision, the RO determined
that the character of discharge for the appellant's period of
service from February to December 1991 was a bar to payment
of VA compensation for any disability related to that period
of service. In September 1993 at a hearing before the Board,
the appellant withdrew from his appeal the issue of service
connection for a chest condition. In May 1995, the Board
remanded this case to the RO for further development. In
February 1997, the Board notified the appellant that as the
Board Member who conducted the September 1993 was no longer
employed by the Board, he had the right to another hearing,
which he subsequently declined. In April 1997 the Board
again remanded this case to the RO.
After the remand development, in a November 1999 decision,
the Board found that new and material evidence had been
presented to reopen the claims of service connection for
residuals of neck and back injuries. The Board then denied
service connection for the injuries, as well as for
hypertension, on the basis that the claims were not well
grounded.
On appeal of the November 1999 Board decision to the U.S.
Court of Appeals for Veterans Claims (Court), the Court, in a
January 2001 order, vacated Board's decision on procedural
grounds and remanded the case to the Board for compliance
with the Veterans Claims Assistance Act of 2000 (VCAA), which
eliminated the legal concept of well-groundedness and
enhanced VA's duties to notify and to assist a claimant in
substantiating a claim. In July 2001, the Board remanded the
case to the RO for procedural and evidentiary development.
In an August 2001 letter and in the September 2001
supplemental statement of the case, the RO notified the
appellant of the VCAA.
The case was returned to the Board in January 2002. In
February 2002, the appellant withdrew a request for a hearing
and appointed Disabled American Veterans as his
representative. In September 2003, the Board remanded the
case so that the RO could consider additional evidence. In
March 2004, the RO issued a supplemental statement of the
case and returned the case to the Board.
The issues of service connection for residuals of neck and
back injuries are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, D.C. Appellate
review of the issue of service connection for hypertension is
deferred, pending completion of the remand.
REMAND
In August 2004, the Board requested a forensic laboratory
examination to determine the authenticity of documents
submitted by the appellant in conjunction with his claim for
VA disability compensation. In October 2004, the Board
obtained the forensic laboratory report from the Office of
the Inspector General of the Department of Veterans Affairs.
As the Board has obtained evidence that was not considered by
the RO and has not obtained the appellant's waiver, the
evidence must be referred to the RO for initial
consideration. For this reason, the case is remanded for the
following action.
In adjudicating the claims of service
connection for residuals of injuries to
the neck and back, consider the Forensic
Laboratory Report, dated October 18,
2004.
If the benefits sought are denied,
furnish the veteran a supplemental
statement of the case and return the case
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
NANCY R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).